23 international status of state-like entities. International legal personality of other participants in international relations (TNCs, INGOs, individuals, humanity), including state-like entities
MP subject- carrier of international rights and obligations arising in accordance with the general norms of the IL or the prescriptions of international legal acts.
Accordingly, int. legal personality - the legal ability of a person to be a subject of international law.
Int. legal personality: actual and legal.
1. States. Signs: territory, population, public authorities (system of organs).
2. Nations fighting for national self-determination. Nation - a historical community of people living in a given territory and characterized by the unity of politics, economics, culture, social life and language.
To be a subject of MP, nations need:
a territory in which it could self-determine;
· political organization that could speak on behalf of the whole nation;
Recognition at int. organizations.
Derivative subjects of MP ( created primary). The legal capacity of derivative SE subjects is stipulated in the agreements on their creation.
1. Int. organizations.
· int. intergovernmental organizations - based on intergovernmental agreements. There are both universal (they are of a worldwide character (UN)) and regional (uniting the subjects of the MP of a given region (OSCE, European Union, Council of Europe, etc.));
· int. non-governmental organizations (the so-called public diplomacy bodies) - founded by non-governmental, non-governmental organizations and individuals.
2. State-like entities (Vatican, San Marino, Monaco, Andorra, Order of Malta in Rome). Their creation is based on an agreement, as a rule, with neighboring states on non-aggression on "free cities", which subsequently transform into similarities of a state with its own insignificant army, border, and a semblance of sovereignty.
The rights of the state as a subject of MP:
1. the right to independence and the free exercise of all their legal rights, to exercise jurisdiction over their territory and over all persons and things within its boundaries, subject to the immunities recognized by the MP;
2. equality with other states;
3. the right to collective and individual self-defense against armed attack.
State obligations:
1. refrain from interfering in the internal and external affairs of other states;
2. refrain from inciting civil strife on the territory of another state;
3. respect human rights;
4. establish conditions on its territory that would not threaten international the world;
5. resolve all their disputes with other subjects of IL only by peaceful means;
6. refrain from the threat or use of force against territorial integrity and political independence or otherwise inconsistent with the MP;
7. refrain from assisting another state that violates a previous duty or against which the UN is taking preventive or coercive measures;
8. refrain from recognizing the territorial acquisitions of another state acting in violation of the obligation not to use force;
9. conscientiously fulfill their obligations.
International legal recognition- this is an act of the state, which states the emergence of a new subject of the MT and with which this subject considers it appropriate to establish diplomatic and other relations based on the MT.
Theories of international legal recognition:
· constitutive - the act of recognition of the destination (addressee of recognition) on the part of already existing subjects of MT plays a decisive role in its international legal status. Disadvantages: in practice, new formations can enter into interstate relations without recognition, it is not clear how many states need recognition in order for a new formation to acquire international legal personality.
declarative - recognition does not mean giving it an appropriate legal status, but only states the fact of the emergence of a new subject international law and facilitates contact with him. Prevails in the international legal doctrine.
Forms of recognition:
1. De facto recognition (de facto) - the actual recognition of the state by establishing with it economic relations without establishing diplomatic relations.
2. Recognition de jure (de jure) - the opening of diplomatic missions, missions in a recognized state.
3. Recognition (one-time) "ad hoc" - recognition of the state for a particular case.
Types of recognition:
traditional types of recognition: recognition of states, recognition of governments;
· preliminary (intermediate): recognition of nations, recognition of an insurgent or belligerent, recognition of resistance, recognition of a government in exile.
Preliminary types of recognition are applied in anticipation of further developments that may lead either to the creation of a new state, or to the stabilization of the situation in the country where power was seized by revolution.
The act opposite to recognition is called protest. The essence of the protest is in disagreement with the legitimacy of the relevant legally significant fact or event, in qualifying it as an internationally wrongful act. The protest must be expressly expressed and somehow brought to the attention of the state to which it concerns.
Some political-territorial formations also enjoy international legal status. Among them were the so-called. Free Cities, West Berlin. This category of entities includes the Vatican and the Order of Malta. Since these formations are most like mini-states and have almost all the features of a state, they are called "state-like formations".
The legal capacity of free cities was determined by the relevant international treaties. Thus, according to the provisions of the Vienna Treaty of 1815, Krakow was declared a free city (1815-1846). Under the Versailles Peace Treaty of 1919, Danzig (1920-1939) enjoyed the status of a “free state”, and in accordance with the peace treaty with Italy in 1947, the creation of the Free Territory of Trieste was provided, which, however, was never created.
West Berlin (1971-1990) had a special status granted by the quadripartite agreement on West Berlin in 1971. In accordance with this agreement, the western sectors of Berlin were united into a special political entity with their own authorities (the Senate, the prosecutor's office, the court, etc.), to which some of the powers were transferred, for example, the issuance of regulations. A number of powers were exercised by the allied authorities of the victorious powers. The interests of the population of West Berlin in international relations were represented and defended by consular officials of the FRG.
The Vatican is a city-state located within the capital of Italy, Rome. Here is the residence of the head catholic church- The Pope. Legal status The Vatican City was defined by the Lateran Agreements signed between the Italian State and the Holy See on February 11, 1929, which are basically still in force today. In accordance with this document, the Vatican enjoys certain sovereign rights: it has its own territory, legislation, citizenship, etc. The Vatican actively participates in international relations, establishes permanent missions in other states (the Vatican also has a representative office in Russia), headed by papal nuncios (ambassadors), participates in international organizations, in conferences, signs international treaties, etc.
The Order of Malta is a religious formation with its administrative center in Rome. The Order of Malta actively participates in international relations, concludes agreements, exchanges representations with states, has observer missions in the UN, UNESCO and a number of other international organizations *.
International legal status of subjects of the federation
In international practice, as well as foreign international legal doctrine, it is recognized that the subjects of some federations are independent states, the sovereignty of which is limited by joining the federation. The subjects of the federation are recognized to have the right to act in international relations within the framework established by federal legislation.
The German constitution, for example, provides that the Länder, with the consent of the federal government, may conclude treaties with foreign states. Norms of a similar content are enshrined in the law of some other federal states. At present, the states of the Federal Republic of Germany, the provinces of Canada, the states of the USA, the states of Australia and other entities, which in this regard are recognized as subjects of international law, are actively involved in international relations.
International activity subjects of foreign federations is developing in the following main directions: conclusion international agreements; opening representative offices in other states; participation in the activities of some international organizations.
The question arises whether there are norms in international law on the international legal personality of subjects of the federation?
As is known, essential element international legal personality is contractual legal capacity. It represents the right to directly participate in the creation of international legal norms and is inherent in any subject of international law from the moment of its inception.
The issues of concluding, executing and terminating treaties by states are regulated primarily by the Vienna Convention on the Law of Treaties of 1969. Neither the 1969 Convention nor other international documents provide for the possibility of independent conclusion of international treaties by subjects of the federation.
Generally speaking, international law does not contain a ban on the establishment of contractual relations between states and subjects of federations and subjects among themselves. However, international law does not classify these agreements as international treaties, just as contracts between the state and a large foreign enterprise are not. In order to be a subject of the law of international treaties, it is not enough to be a party to an international agreement. It is also necessary to have the legal capacity to conclude international treaties.
The question arises about the international legal status of the subjects of the Russian Federation.
International legal status of subjects Russian Federation
As is known, the 1977 Constitution of the USSR recognized the union republics as subjects of international law. Ukraine and Belarus were members of the UN , participated in many international treaties. Less active members international relations there were other union republics whose constitutions provided for the possibility of concluding international treaties, exchanging missions with foreign states. With the collapse of the USSR, the former Soviet republics acquired full international legal personality, and the problem of their status as independent subjects of international law disappeared.
However, the processes of sovereignization that engulfed the newly independent states raised the question of the legal personality of the former national-state (autonomous republics) and administrative-territorial (regions, territories) formations. This problem acquired special significance with the adoption of the new Constitution of the Russian Federation in 1993 and the conclusion of the Federal Treaty. Today, some subjects of the Russian Federation declared their international legal personality.
The subjects of the Russian Federation try to act independently in international relations, conclude agreements with the subjects of foreign federations and administrative-territorial units, exchange representations with them and fix the relevant provisions in their legislation. The charter of the Voronezh region of 1995, for example, recognizes that the organizational and legal forms of the region's international relations are forms generally accepted in international practice, with the exception of treaties (agreements) of the interstate level. Taking part in international and foreign economic relations on its own or with other subjects of the Russian Federation, the Voronezh Region opens representative offices on the territory of foreign states to represent the interests of the region, which operate in accordance with the legislation of the host country.
The normative acts of some constituent entities of the Russian Federation provide for the possibility of them concluding international treaties on their own behalf. Yes, Art. 8 bylaws Voronezh region 1995 establishes that the international treaties of the Voronezh region are part of the legal system of the region. Norms of a similar content are fixed in Art. 6 bylaws Sverdlovsk region 1994, Art. 45 of the Charter (Basic Law) of the Stavropol Territory of 1994, art. 20 of the Charter of the Irkutsk region of 1995 and other charters of the constituent entities of the Russian Federation, as well as in the constitutions of the republics (Article 61 of the Constitution of the Republic of Tatarstan).
Moreover, in some constituent entities of the Russian Federation, regulations have been adopted that regulate the procedure for concluding, executing and terminating contracts, for example, the law of the Tyumen region “On international agreements of the Tyumen region and treaties of the Tyumen region with the constituent entities of the Russian Federation” was adopted in 1995. The law of the Voronezh region “On legal normative acts of the Voronezh region" 1995 establishes (Article 17) that the authorities state power regions have the right to conclude agreements, which are regulatory legal acts, with state authorities of the Russian Federation, with subjects of the Russian Federation, with foreign states on issues of their common, mutual interest.
However, the statements of the constituent entities of the Russian Federation about their international contractual legal capacity do not yet mean, in my deep conviction, the existence of this legal quality in reality. It is necessary to analyze the relevant norms of legislation.
Federal legislation does not address this issue yet.
According to the Constitution of the Russian Federation (clause “o”, part 1, article 72), the coordination of international and foreign economic relations of the constituent entities of the Russian Federation belongs to the joint jurisdiction of the Russian Federation and the constituent entities of the Federation. However, the Constitution does not directly speak about the possibility of the subjects of the Russian Federation to conclude agreements that would be international treaties. The Federal Treaty does not contain such norms either.
The Federal Law "On International Treaties of the Russian Federation" of 1995 also refers the conclusion of international treaties of the Russian Federation to the jurisdiction of the Russian Federation. It has been established that the international treaties of the Russian Federation, affecting issues related to the jurisdiction of the subjects of the Federation, are concluded in agreement with the relevant bodies of the subjects. At the same time, the main provisions of treaties affecting issues of joint jurisdiction should be sent for submission of proposals to the relevant bodies of the subject of the federation, which, however, do not have the right to veto the conclusion of the treaty. The 1995 law does not say anything about the agreements of the subjects of the Federation.
It should also be taken into account that neither the Constitution of the Russian Federation nor the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” dated July 21, 1994 fix the norms on checking the constitutionality of international treaties of the subjects of the Federation, although such a procedure is provided for international treaties of the Russian Federation.
As for the practice of exchanging representations with subjects of foreign federations, this quality is not the main one in characterizing international legal personality, however, we note that neither the Constitution nor the legislation of the Russian Federation have yet regulated this issue. These representative offices are not opened on the basis of reciprocity and are accredited by any authority of a subject of a foreign federation or territorial unit. These bodies, being foreign legal entities, do not have the status of diplomatic or consular missions and are not subject to the provisions of the relevant conventions on diplomatic and consular relations.
The same can be said about the membership of the subjects of the Russian Federation in international organizations. It is known that the statutes of some international organizations (UNESCO, WHO, etc.) allow membership in them of entities that are not independent states. However, firstly, membership in these organizations of the constituent entities of the Russian Federation has not yet been formalized, and, secondly, this sign, as already mentioned, is far from the most important in characterizing the subjects of international law.
Considering the above, the following conclusion can be drawn:
although at present the subjects of the Russian Federation do not fully possess all the elements of international legal personality, there is a clear trend towards the development of their legal personality and their registration as subjects of international law. In my opinion, this issue needs to be resolved in federal legislation.
The state becomes the subject of the MT from the moment of its inception (ipso facto - by virtue of the fact of its existence).
Features of the state as a subject of MP:
1) sovereignty, there are no absolutely sovereign states;
2) immunity - withdrawal from jurisdiction, extends to the state, its bodies, state property, officials abroad. The state itself decides the issue of the scope of immunity, may refuse in whole or in some part.
Concepts:
Absolute immunity - extends to all actions of the state;
Relative immunity - only for those actions that the state carries out as a sovereign, as a bearer of power. When the state acts as a private person, then immunity does not apply (USA, South Africa, Singapore, UK). There are a number of international treaties adhering to this concept: the European Convention on State Immunity, the Convention for the Unification of Certain Rules Concerning the Immunity of Merchant Ships.
Types of immunities:
a) Judicial immunity - the lack of jurisdiction of one state to another without its consent; prohibition of application of measures to secure a claim, prohibition of enforcement judgment;
b) Immunity of state property - inviolability of property, prohibition of seizure, arrest, foreclosure;
c) Fiscal (tax) - the activities of the state abroad are not subject to taxes, fees, except for those that represent a fee for any service.
3) population - all persons who live in the territory and the state and are subject to its jurisdiction.
4) territory - in the MP is considered as part of the geographical space, the significance of the state territory: the material basis for the existence of the population; scope of state law. The state territory includes land, subsoil, water space ( inland waters, archipelagic waters, territorial sea), air space over land and water. Limits delineated state borders. Exist state territories with international regimes, for example Svalbard - the territory of Norway.
5) the presence of a system of bodies responsible for the international relations of the state (foreign relations bodies).
Bodies of external relations:
a) domestic:
Provided by the constitution of the state: head of state, parliament, government;
States not provided for by the constitution: department of foreign affairs, other bodies (for example, the Ministry of Foreign Economic Relations), bodies created to fulfill certain international obligations– for example, the NCB of Interpol;
b) foreign:
Permanent: diplomatic missions, consular offices, trade and other special missions (for example, tourist ones), missions to international organizations (permanent missions or observer missions);
Temporary: special missions, delegations to conferences, meetings.
A special question of the MP is whether the members of federal states are subjects of the MP? in particular, are they subjects of the Russian Federation?
An analysis of Russian legislation (Federal Law “On International Treaties of the Russian Federation”, “On the Coordination of International and Foreign Economic Relations of the Subjects of the Russian Federation”) allows us to draw a number of conclusions:
Subjects of the Russian Federation may conclude international agreements, but these agreements are not international treaties; and these agreements may not be entered into without the permission of the Federation.
The federation agrees an international treaty with a subject of the Russian Federation if the treaty affects the territory of the subject, but the subject does not have the right of veto.
Subjects may be members of international organizations, but only those that allow membership of non-sovereign entities.
Thus, the subjects of the Russian Federation are not subjects of the MP.
35. State-like formations are subjects of international law.
State-like formations- derived subjects of international law. This term is a generalized concept, since it applies not only to cities, but also to certain areas. G.p.o. are created on the basis of an international treaty or a decision of an international organization and represent a kind of state with limited legal capacity. They have their own constitution or act of a similar nature, supreme government bodies, citizenship. G.p.o. is, as a rule, demilitarized and neutralized. There are political-territorial (Danzig, Gdansk, West Berlin) and religious-territorial state-like formations (Vatican, Order of Malta). Currently, there are only religious-territorial state-like entities. Such entities have territory, sovereignty; have their own citizenship, legislative assembly, government, international treaties. Most often, such formations are temporary in nature and arise as a result of the unsettled territorial claims of various countries to each other.
The common thing for political-territorial formations of this kind is that in almost all cases they were created on the basis of international agreements, as a rule, peace treaties. Such agreements endowed them with a certain international legal personality, provided for an independent constitutional structure, a system of government bodies, the right to issue normative acts, and have limited armed forces 1 .
Ö These are free cities in the past (Venice, Novgorod, Hamburg, etc.) or in modern times (Danzig).
Ö West Berlin had a special status after the Second World War (before German reunification in 1990).
Ö State-like subjects of international law include Vatican. This administrative center Catholic Church, headed by the Pope, "state-city" within the Italian capital - Rome. The Vatican has diplomatic relations with many states in various parts of the world (including Russia), permanent observers at the UN and some other international organizations, and takes part in international conferences of states. Legal status The Vatican is defined by special agreements with Italy in 1984.
It is customary to refer to the category of derivative subjects of international law as special political-religious or political-territorial units that, on the basis of an international act or international recognition, have a relatively independent international legal status.
Such political-religious and political-territorial units are called state-like entities in international law.
State-like formations (quasi-states) - special kind subjects of international law that have some features (features) of states, but are not such in the generally accepted sense.
They are endowed with an appropriate amount of rights and obligations and thus become subjects of international law.
K.K. Gasanov identifies the following features of state-like formations:
1) territory;
2) permanent population;
3) citizenship;
4) legislative bodies;
5) government;
6) international treaties.
The question arises: why are state-like formations not among the primary ones?
The answer to this question is given by R.M. Valeev: state-like formations do not have such a property as sovereignty, because, firstly, their population is not a people, but part of a nation or representatives of various nations; secondly, their international legal capacity is severely limited; they do not have real independence in the international sphere. The appearance of such formations is based on international instruments(contracts).
In the historical aspect, the “free cities”, West Berlin, are referred to as state-like formations, and at present the most striking examples are the Vatican and the Order of Malta.
The Free City is a self-governing political entity that has been granted an international legal status by an international treaty, allowing it to participate mainly in economic, administrative and cultural international legal relations.
The creation of a free city, as historical experience shows, is usually the result of a settlement controversial issue about its belonging to one state or another.
In 1815, to resolve the contradictions between the great powers, the Treaty of Vienna declared Krakow a free city under the auspices of Russia, Austria and Prussia. In 1919, an attempt was made to resolve the dispute between Germany and Poland regarding Danzig (Gdansk) by granting it the status of a free city under the guarantee of the League of Nations. The external relations of the city were carried out by Poland.
To settle the claims of Italy and Yugoslavia regarding Trieste, the Statute of the Free Territory of Trieste was developed. The territory was to have a constitution, citizenship, a people's assembly, and a government. At the same time, the constitution and the activities of the government had to comply with the Statute, i.e. international legal act. In 1954, Italy and Yugoslavia divided the territory of Trieste between them.
state-like entity international law
Therefore, the highest legal act for it, as mentioned above, is an international treaty, which determines the special international legal personality of the city.
West Berlin had a unique international legal status in accordance with the Quadripartite Agreement of the USSR, Great Britain, the USA and France of September 3, 1971. These states retained the special rights and responsibilities in relation to West Berlin, which maintained official relations with the GDR and the FRG. The GDR government concluded a number of agreements with the West Berlin Senate. The German government represented the interests of West Berlin in international organizations and conferences, provided consular services to its permanent residents. The USSR established a consulate general in West Berlin. Due to the unification of Germany, formalized by the Treaty of the Final Settlement concerning Germany of 12 September 1990, the rights and responsibilities of the four powers in relation to West Berlin were terminated as it became part of the united Federal Republic of Germany.
The question of the international legal personality of the Vatican and the Order of Malta has a certain specificity. They will be discussed in more detail in the following sections of this chapter.
Thus, state-like entities should be classified as derivative subjects of international law, since their legal personality is the result of the intentions and activities of the primary subjects of international law.
(quasi-states) are derivative subjects of international law, since, like international organizations, they are created by primary subjects - sovereign states.
By creating, states endow them with an appropriate amount of rights and obligations. This is the fundamental difference between quasi-states and the main subjects of international law. For the rest, state-like education possesses all the features inherent in a sovereign state: its own territory, state sovereignty, higher authorities state power, the presence of their own citizenship, as well as the ability to act as a full participant in international legal relations.
State-like formations are, as a rule, neutralized and demilitarized.
The theory of international law distinguishes the following types state-like entities:
1) political-territorial (Danzig - 1919, West Berlin - 1971).
2) religious-territorial (Vatican - 1929, Order of Malta - 1889). Currently, the subject of international law is only one religious-territorial state-like entity - the Vatican.
The Order of Malta was recognized as a sovereign military entity in 1889. Its seat is Rome (Italy). The main purpose of the Order is charity. At present, the Order has established diplomatic relations with sovereign states (104), signifying its international recognition. In addition, the Order has observer status at the UN, its own currency and citizenship. However, this is not enough. The Order has neither its territory nor its own population. From which it follows that he is not a subject of international law, and his sovereignty and ability to participate in international relations can be called a legal fiction.
The Vatican, unlike the Order of Malta, has almost all the features of a state: its own territory, population, supreme authorities and administration. The peculiarity of its status lies in the fact that the purpose of its existence is to represent the interests of the Catholic Church in the international arena, and almost the entire population is subjects of the Holy See.
International legal personality The Vatican was officially confirmed by the Lateran Treaty of 1929. However, long before its conclusion, the institution of the papacy received international recognition. Currently, the Holy See has established diplomatic relations with 178 sovereign states and other subjects of international law - European Union and the Order of Malta. It should be noted that the entire volume of international legal personality granted to the Vatican is exercised by the Holy See: it participates in international organizations, concludes international treaties, and establishes diplomatic relations. The Vatican itself is only the territory of the Holy See.
